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February 20, 2016

Courts Taking New Approach to Determining Date of Separation

Often clients come into our office and ask “how do I determine when my spouse and I separated?” The answer given to clients in the past has been based on various factors and a “totality of circumstances”. These factors varied from case to case basis. California courts considered two basic questions: (1) whether at least one spouse has expressed intent of not resuming the marital relationship; and (2) whether there were objective conduct pointing to a complete and final break of the marriage.

In past decisions the court has viewed living in physically separate residences as one of many factors to consider but not a decisive factor in determining the date of separation. In 2002, the Appeals Court created a split in the interpretation of Family Code Section 771(a) when it held that living separately (residing at different addresses) is a necessary threshold requirement in determining date of separation. In re Marriage of Norviel (2002) 102 Cal.App.4th 1152. The recent decision in the case of In re Marriage of Davis (2015) 220 Cal.App.4th 1109, has put this split to the test. Click Here for full opinion in Davis case.

The facts of the Davis case are not unique and often arise in family law cases. The Davis couple had two children: a daughter and a son. In June 2006, Mrs. Davis announced to Mr. Davis that she was “through” with the marriage. But they continued to live together in the family home and split the expenses 50-50. They have continued to take care of their own personal expenses since the 2006 “announcement”. Mrs. Davis maintained that since 2006, they were simply “roommates.” However, they continued to take family vacations with their children and celebrated birthdays and holidays as a family, in all of which, they used their joint bank accounts. It is noteworthy that the couple had discussed the possibility of divorce beginning in 2004, but stayed together for the sake of the children. In December 2008, Mrs. Davis filed for divorce listing the date of separation as June 1, 2006. Mr. Davis responded and listed the date of separation as January 2, 2009, few days after Mrs. Davis’ initial filing. Mrs. Davis moved out of the family home in July 2011, upon which, Mr. Davis amended his response and listed the date of separation as July 1, 2011.

The trial court ruled that the date of separation is June 1, 2006, and the Appeals Court affirmed. The Appeals Court rejected the majority decision in Norviel, which held that living in physically separate residences is “an indispensable threshold requirement” for separation under section 771(a). Recently, the California Supreme Court, in the case of In re Marriage of Davis, settled the split in the courts’ interpretation of section 771(a).[7] The Court unanimously reversed the Appeals Court and affirmed Norviel, holding that section 771(a) requires that spouses live in separate residences in order for their earnings to be counted as separate property.

Writing for the Court, Chief Justice Tani Cantil-Sakauye reasoned that both the plain meaning of the phrase “living and separate apart” of section 771(a) and its history since 1870 were consistent with the conclusion that both separate residences and demonstrated intent to end the marriage must be present to find a couple separated under section 771(a). The Court found it worthy to note that there had been no negative reaction from the bench and the bar to the Norviel decision claiming that it introduced a “sudden new rule that was legislatively unintended and unworkable,” and that the Legislature had more than a decade to amend section 771(a) in response to Norviel but failed to do so.

Despite the argument that bright-line rules usually means less litigation, which in turn arguably translates to lower costs and stress for the family law litigant, some legal scholars are criticizing the Court’s over-simplified and blunt interpretation of section 771(a) requiring (as a threshold matter) that spouses must live in separate residences. As Prof. Shaun Martin of the University of San Diego Law School noted: “[W]hat if you’re living in the guest house? What if you’re living in the garage? What if you’re living in the den? What if you’re sleeping on the couch? At what point is your life sufficiently distinct from that of your spouse that you’re no longer ‘together,’ but are instead ‘separate and apart’?” [Read Shaun Martin’s Blog Here]. In a concurring opinion joined by Associate Justice Kathryn Werdegar, Associate Justice Goodwin Liu pushed back by holding that courts should not be bound by the “Legislature’s narrow understanding” of the term “living separate and apart” especially when spouses had made a “living arrangement that clearly and objectively signals a complete and final termination of the marital relationship.” Thus, the current Supreme Court ruling does not totally foreclose the possibility that a couple may be “living separately and apart” though they are living under the same roof.

Davis may have proposed a bright-line rule in determining the date of separation but as Justice Liu opined, the question remains open in many cases and as facts vary in each case, the issue may be more complex than how it seems. Determination of the date of separation may have a great impact on the division of the community estate. As such, it is imperative that individuals seek the assistance of an experienced family law attorney early on in a divorce case.

Tierney Law Group, PC is a California based law firm specializing in Family Law. T&M can be reached at 925-362-3364 or